Marquette University Law School poll shows that most voters not "tuned in" to Supreme Court race2/25/2026  Marquette University Law School's Lubar Center Director Derek Mosley (left) and Marquette University Law School Poll Director Charles Franklin (right) at the recent poll results announcement on Feb. 25, 2026, at the law school. Photograph by Margo Kirchner. By Margo Kirchner
The "punchline" of the latest Marquette University Law School Poll is that Wisconsin voters just have not "tuned into the races" this year, said poll director Dr. Charles Franklin at a lunch-time event at the law school today. Two-thirds of registered voters participating in the latest poll are still undecided regarding both parties' primary candidates for governor and the Supreme Court race, said Franklin. While the lack of interest in the partisan primary races could be explained by the length of time until they occur in the second half of the year, the nonpartisan Supreme Court election is less than six weeks away. Franklin compared the public's awareness of last year's Supreme Court race to awareness of this year's race. In February 2025, 39% of registered voters polled had heard quite a bit about the April 2025 election between Susan Crawford and Brad Schimel. This year, just 6% of registered voters in the poll conducted between Feb. 11 and 19 reported having heard much about the Supreme Court race between Wisconsin Court of Appeals Judges Chris Taylor and Maria Lazar. Out of likely voters, 15% reported a likely vote for Lazar, 22% reported a likely vote for Taylor, and 62% said they were undecided. Similar percentages of respondents (23% as to Lazar and 21% as to Taylor) had no clear idea what the candidate stands for, while about 60% said they had not heard enough to know. The poll report, which includes public opinion on candidates, elected officials, data centers, Immigration and Customs Enforcement, online betting, and other topics, is available here. When Lubar Center Director Derek Mosley asked Franklin how the public stands regarding data centers specifically, Franklin responded: "We don't like 'em." The Supreme Court election is April 7. Franklin said he'll conduct another poll before then. Meanwhile, for voters wanting to know more about the Supreme Court candidates:
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Current Wisconsin Court of Appeals Judges Maria Lazar and Chris Taylor vie for the open seat on the Wisconsin Supreme Court created by Justice Rebecca Grassl Bradley's retirement. The election is April 7. Lazar is an appellate judge in District 2 (centered in Waukesha and composed of southeastern Wisconsin counties excluding Milwaukee County) and previously was a Waukesha County Circuit Court judge. She graduated from Georgetown University Law Center in 1989. A copy of her resume/CV is here. Taylor is an appellate judge in District 4 (centered in Madison and composed of south central and southwestern Wisconsin counties) and previously was a Dane County Circuit Court judge. She graduated from the University of Wisconsin Law School in 1995. A copy of her resume/CV is here. WJI asked each of the candidates to answer a series of questions. The questions are patterned after some of those on the job application the governor uses when he is considering judicial appointments. Answers are printed as submitted, without editing or insertion of “(sic)” for errors. The candidates are presented alphabetically by last name.
 The entrance to the Wisconsin Supreme Court at the Capitol in Madison. Photograph by Margo Kirchner. By Alexandria Staubach
A hot bench of Wisconsin Supreme Court justices challenged a lawyer for the Wisconsin Institute for Law & Liberty during oral arguments last week about his challenge to a state technical college grant program. At issue is whether the program is a permissible targeted solution to address racial inequities or impermissible race-based discrimination. WILL attorney Luke Berg argued that all race-based state action is unconstitutional, with exceptions only for addressing race riots in prisons and remedying specific past state-sanctioned discrimination. Berg drew his argument from a 2023 U.S. Supreme Court decision regarding Harvard. That decision effectively banned race-based college admission policies across the country. Berg argued that the only question for the Wisconsin high court was “when, how, and by whom (the state grant law) gets struck down.” Justice Rebecca Dallet called Berg’s argument a “threat,” “offensive,” and “inappropriate.” The heated and unusual exchange took place during oral arguments in Rabiebna v. Higher Educational Aids Board, in which Berg's client challenges the race-based technical college retention grant statute that has been on the statute books in Wisconsin since 1985. Grants allocated by the statute range from $250 to $2,500 and are available to students who are Black, American Indian, Hispanic, and Southeast Asian (specifically individuals who fled Laos, Vietnam and Cambodia after 1975 or their descendants) and attending state technical college programs. Berg took the position that any race-based program initiated by the state is inherently unconstitutional as enacting “explicit racial discrimination into the law.” Dallet pushed back. “What if we had a maternal fetal health issue with Black babies dying at a higher rate than white babies,” she asked, adding “which, by the way, we do have significantly.” “Are you saying the state couldn’t target that because if they use the word race, if they say the word “Black,” we’re done?” Berg responded that the state would need to pass a program applicable to all babies instead. “The state can talk about that problem, (but) what it can’t do is enact into law an explicit racial discrimination,” he insisted. “They would pass a program that applies to all babies that need it and it would mostly apply to the Black babies if that’s the real problem, but there are some white babies in the world who might need that program, too, so you would make the program available to all,” he said. Other justices, too, questioned Berg on the scope of his desired result. “People of color contribute to the vitality of our state, and they are thanked by facing disparities when it comes to housing, access to medical care, transportation, incarceration, financial stability and education,” said Chief Justice Jill Karofsky. She asked Berg if he “agreed that education plays a central role in breaking the cycle of inequity.” “I think the worst form of discrimination is discrimination under the law,” Berg responded. Berg indicated that government cannot address race-based problems with targeted solutions. “Does the state have an interest in examining, addressing, and eliminating those disparities?” asked Justice Susan Crawford. “No,” said Berg. Berg suggested the law is so clearly in favor of his position that the Supreme Court should “D-I-G” the case, meaning dismiss it as “improvidently granted.” The Court of Appeals decision in Berg’s favor would then stand. Jefferson County Circuit Court Judge William Hue determined that the grant program survived WILL’s constitutional challenge. However, a unanimous District 2 appeals panel of Judges Mark Gundrum, Maria Lazar, and Shelly Grogan reversed. “(G)overnment funding or support designed to provide a benefit or cause a detriment to persons based even in part on their race, national origin, or ancestry cannot stand,” Gundrum wrote. At last week’s Supreme Court argument, Assistant Attorney General Charlotte Gibson called the District 2 decision “radical.” “I am not aware of any court in the county who has come up with a ban that would be this categorical, that would cover things like medical research that’s targeted at a particular group that is suffering from specific health outcomes,” said Gibson. She cautioned that “that is exactly the rule of law they’re looking for.” Gibson argued that the grant program is narrowly tailored to address the state’s compelling interest in improving retention rates for college students with disproportionately high attrition—a problem “race-neutral aid has failed to fix.” By Alexandria Staubach The shuttering of WisconsinEye earlier this week has left a gaping hole in the public’s ability to watch what their officials are doing. For nearly 20 years, Wisconsin advocacy groups, community organizers, and independent journalists have relied on WisconsinEye, or “WisEye.” It provided comprehensive coverage of Capitol happenings and has been the state’s only gavel-to-gavel coverage of the Legislature, Supreme Court, Elections Commission, and more. WisconsinEye shut down on Dec. 15 due to a lack of funding and failure to meet minimum fundraising goals required to take advantage of a $10 million match offered by the Legislature earlier this year. It provided unedited, live coverage of full proceedings, as well as an important archive. WisconsinEye’s coverage allowed WJI staff and citizens across the state and nationwide to analyze arguments and identify the positions of Wisconsin’s legislators, justices, and executive branch officials without filter. Its closure highlights a dangerous trend: the decline of civic infrastructure. With the coverage and archive gone, tracking what happens at the Capitol becomes exponentially harder. Fish big and small—from formal media to nonprofits to active Wisconsinites of all parties and interests—will shoulder the weight of WisconsinEye’s demise. Wisconsin Justice Initiative's small staff is located in Milwaukee. WisconsinEye’s coverage of legislative hearings allowed staff to watch them without taking an entire day to travel to Madison. WJI has already missed a public hearing on proposed legislation to increase the maximum penalty for certain controlled substance offenses occurring near a homeless shelter. Kate Duffy, the woman behind Wisconsin’s @motherhoodforgood, spoke to WJI about the importance of WisconsinEye to what she does on that social media platform. Duffy's platform, with more than 100,000 followers, aims to make individual advocacy and civic engagement accessible to its followers. “As an independent content creator and civic educator, access to WisEye is essential to my work,” said Duffy. “More people are getting their news from social media, and many of us who aim to reach these audiences don’t have access to a traditional newsroom or the ability to be at the Capitol every day,” she said. Duffy said WisconsinEye allows her "to see for myself what’s actually happening in legislative hearings and floor sessions, without filters or spin.” “At a time when trust in information is fragile, WisEye remains one of the few truly objective, public-facing sources available,” she said. “Keeping it funded is critical to transparency and public understanding.” Amanda Merkwae, advocacy director at the ACLU of Wisconsin, confirmed that importance, telling WJI, “WisconsinEye plays a vital role in keeping the public informed and holding those in power accountable through transparency.” “Watching legislative floor sessions and committee hearings, Wisconsin Supreme Court oral arguments, and other programming on WIsconsinEye is part of my near-daily routine," she said. It’s unclear whether or how WisconsinEye could continue. Earlier this week a message replacing the decades-long archive of hearings and live coverage said in part: “Without consistent annual funding . . . citizens, legislators, legislative staff, the governor’s administration, agency leadership and staff, trade associations, attorneys and the courts, local government officials, journalists and all print, cable, television and radio news outlets, businesses, nonprofit organizations — all lose the only reliable and proven source of unfiltered State Capitol news and state government proceedings.” It attributed the shuttering to “extreme competition and a complete collapse in private funding.” That message has since been replaced by one highlighting the station’s award-winning coverage and years of service:  Legislation circulated for co-sponsorship by Sens. Mark Spreitzer, Kelda Roys, and Chris Larson and Rep. Brienne Brown earlier this week may provide an answer.
A new bill proposes the establishment of an Office of the Public Affairs Network to replace WisconsinEye. According a memo regarding co-sponsorship, the proposal “creates a permanent office to operate a public affairs network that will provide full coverage of state government proceedings in Wisconsin.” The memo says the Office of the Public Affairs Network would administer a network to:
The network would be governed by a board of seven, including the governor or their designee, two additional public appointees of the governor, and four legislators—one from the majority and one from the minority caucuses in both chambers. The Legislature would appropriate $2 million annually to support eight staff positions, which, according to the memo is equivalent to WisconsinEye’s “current coverage while supporting increased access.” The bill also directs the Department of Administration to “attempt” to obtain WisconsinEye’s digital archive to be incorporated into the new network’s archive. “While WisconsinEye's current contract requires them to hand over digital archives to the Wisconsin Historical Society for ongoing public access if WisconsinEye is ever dissolved or liquidated, WisconsinEye’s current funding issues have resulted in WisconsinEye taking the archives offline without a replacement becoming available,” wrote the senators. In the memo, the senators say the bill will transform “the recording, broadcasting, and archiving of Wisconsin’s state government proceedings from a failed private venture into a reliable, nonpartisan public service.” No matter the form, WisconsinEye’s coverage is critical to effective advocacy and public access to the actions of elected officials. “WisconsinEye’s live webcasts and recordings of state legislative proceedings in Wisconsin provide transparency and critical access to democracy for residents all over the state,” Merkwae told WJI. “We hope the Legislature can come to an agreement to continue this essential service, not only for individuals and organizations engaging in legislative advocacy, local government officials impacted profoundly by state government decisions, and journalists, but for everyday Wisconsinites who have a right to an accessible way to access what is happening in state government,” she said. Note: In a normal SCOW docket post we crunch Supreme Court of Wisconsin decisions down to manageable size. The rules for this are that no justice gets more than 10 paragraphs as written in the actual decision and the “upshot” and “background” sections do not count because of their summary and necessary nature. In this post, we’re breaking down last week's unsigned order of the court in cases challenging Wisconsin's congressional districting, plus the concurring and dissenting opinions. Each justice will still receive no more than 10 paragraphs. Regular italics are in the original opinion. Italics surrounded by parentheses indicate WJI insertions. This post is slightly different than prior ones because there are actually two orders. Two separate cases challenge Wisconsin’s congressional districting, and the court issued an order in each case. The orders and opinions in each case are nearly identical and address substantively the same arguments. The quotations for this post come from Bothfeld. As usual, we’ve generally removed citations from the opinions for ease of reading. However, in this instance, some statutory citations and references to prior Supreme Court decisions are necessary to understand the opinions. Several references to the multiple Johnson opinions in particular are left in. That case concerned the challenges to Wisconsin’s redistricting maps following the 2020 census and resulted in opinions subsequently called Johnson I, Johnson II, and Johnson III. Finally, we have included both versions of one paragraph of Justice Annette Kingsland Ziegler’s dissent. Following issuance of these orders on Nov. 25, journalist Mark Joseph Stern quickly posted on Bluesky and reported in Slate about Ziegler’s inaccurate quotation and interpretation of the U.S. Supreme Court's decision in Moore v. Harper. Stern told Wisconsin Justice Initiative last week that he asked the Wisconsin Supreme Court to correct it. Ziegler’s initial dissent was replaced by a new version eliminating the quotation marks and adding a parenthetical. We quote both versions, with the changed language in bold. The cases: Elizabeth Bothfeld v. Wisconsin Elections Commission Wisconsin Business Leaders for Democracy v. Wisconsin Elections Commission Majority: Unsigned but consisting of Chief Justice Jill Karofsky and Justices Rebecca Dallet, Janet Protasiewicz, and Susan Crawford (5 pages) Concurrence in part and dissent in part: Justice Brian K. Hagedorn (2 pages) Dissent: Justice Annette Kingsland Ziegler (9 pages) Dissent: Justice Rebecca Grassl Bradley (7 pages) Upshot (The court held that pursuant to state statutes it must appoint a three-judge panel and select a venue for each case to hear the challenges to congressional districting. The court chose Dane County Circuit Court as the venue for both cases and appointed the following circuit court judges: Bothfeld case: Julie Genovese, Dane County Circuit Court Mark Sanders, Milwaukee County Circuit Court Emily Lonergan, Outagamie County Circuit Court WBLD case: David Conway, Dane County Circuit Court Patricia Baker, Portage County Circuit Court; and Michael Moran, Marathon County Circuit Court) Background On July 22, 2025, this court received written notice from the Dane County Clerk of Courts of the filing of a summons and complaint on July 8, 2025, by Elizabeth Bothfeld and other individual voters (collectively, “Bothfeld”) against the Wisconsin Elections Commission et al. (collectively, “WEC”). The complaint alleges that Wisconsin’s current congressional map violates the Wisconsin Constitution in various respects. The Dane County Clerk of Courts enclosed a copy of the summons and complaint in its July 22, 2025 written notice to this court. This court opened miscellaneous Case No. 2025XX1438 to receive these filings. *** On September 25, 2025, this court entered an order requiring the parties to submit simultaneous briefs and response briefs addressing “whether Bothfeld’s complaint filed in the circuit court constitutes ‘an action to challenge the apportionment of a congressional or state legislative district’ under WIS. STAT. § 801.50(4m).” (The court granted motions by individual voters and the Wisconsin Legislature to file amici curiae (nonparty) briefs and granted a motion to intervene filed by a group of Congressmen and individual voters.)  Majority . . . . WISCONSIN STAT. § 731.035(1) states that “[u]pon receiving notice under s. 801.50(4m), the supreme court shall appoint a panel consisting of 3 circuit court judges to hear the matter. The supreme court shall choose one judge from each of 3 circuits and shall assign one of the circuits as the venue for all hearings and filings in the matter.” *** The Bothfeld plaintiffs argue that their complaint clearly constitutes “an action to challenge the apportionment of any congressional or state legislative district” for purposes of WIS. STAT. § 801.50(4m). This is so given that, in various cases over many years’ time, this court has used the terms “redistricting,” “apportionment,” and “reapportionment” interchangeably to mean redrawing Wisconsin’s congressional and state legislative districts so as to comply with state or federal law. The court’s use of these terms interchangeably comports with (the Wisconsin Constitution), which labels the state legislative redistricting process “Apportionment” in its title and describes the legislature’s task as to “apportion and district” anew. Moreover, cases interpreting an analogous federal statute, which requires appointment of three-judge panels to hear “apportionment” challenges in federal courts, consistently use the terms “apportionment” and “redistricting” interchangeably. Given the above, the Bothfeld plaintiffs argue, their complaint plainly falls within the scope of § 801.50(4m), thus requiring this court to appoint a three-judge panel and designate a circuit court venue pursuant to state law. The Congressmen, the Legislature, and the amici generally argue that Bothfeld’s complaint does not fall within the scope of WIS. STAT. § 801.50(4m) because the complaint is not an “apportionment” challenge, which they define narrowly as a challenge to the distribution of legislative seats among districts. Bothfeld’s complaint is instead a “redistricting” challenge, which they define narrowly as a challenge to district boundaries. In their view, the non-synonymous nature of the terms is confirmed by the Wisconsin Constitution, which uses the terms “apportion” and “district” in a single section, indicating that the terms have distinct meanings. Moreover, these parties argue, “apportionment” refers only to legislative action, not the remedial judicial action that this court took in Johnson II, of adopting Wisconsin’s current congressional map. Because Bothfeld’s lawsuit is not an “apportionment” challenge, these parties submit, the court should not appoint a three-judge panel. Instead, the court should employ its superintending authority and dismiss Bothfeld’s complaint, as the suit constitutes an improper collateral attack on Johnson II that a lower court is in no position to adjudicate. The defendants—WEC, its members, and its administrator—filed a statement explaining that it takes no position on the question posed. We conclude that Bothfeld’s complaint does constitute “an action to challenge the apportionment of any congressional or state legislative district” for purposes of WIS. STAT. § 801.50(4m). We acknowledge, as noted by the parties, that in (a prior case) we stated in a footnote, without citation, that “[r]eapportionment is the allocation of seats in a legislative body where the district boundaries do not change but the number of members per district does (e.g., allocation of congressional seats among established districts, that is, the states); redistricting is the drawing of new political boundaries[.]” But this statement did not address the meaning of § 801.50(4m)—a statute that did not exist until nearly 10 years after the Jensen decision. Were we to view Jensen as dispositive of the meaning of the term “apportionment” in § 801.50(4m)—such that here, the term would refer only to the allocation of congressional seats to Wisconsin—it is difficult to conceive of any state-court “action to challenge the apportionment of any congressional . . . district” to which § 801.50(4m) would apply, as “apportionment” in that sense occurs only at the federal level, not the state level. We decline to adopt such a cramped reading of the statute, particularly given that neither we nor other courts have consistently used the term “apportionment” in such a limited sense. We also reject as unsupported the suggestion in the briefing that “apportionment” refers only to legislative action, not judicial action. Because Bothfeld’s complaint constitutes an “action to challenge the apportionment of a congressional or state legislative district” within the meaning of § 801.50(4m), this court is required to appoint a three-judge panel and to select a venue for the action pursuant to (state statute).  Hagedorn Concurrence in part and dissent in part The question before us at this stage is a narrow one, and it does not involve whether the petitioners have valid claims or can obtain their requested relief. The issue is simply whether this court should appoint a three-judge panel pursuant to (state statutes). As the court’s order explains, I conclude these statutes apply to this case, and a panel must be appointed. I disagree, however, with how this court is fulfilling its statutory mandate. Wis. Stat. § 801.50(4m) provides a unique venue selection mechanism for actions challenging “the apportionment of any congressional . . . district,” and directs us to WIS. STAT. § 751.035. That section then sets forth procedures to provide both a new location and a new judicial decision-maker. These statutes are transparently designed to prevent forum shopping in disputes over where congressional lines should be drawn. To avoid litigants simply choosing their preferred venue and judge, the statute requires the appointment of a three-judge panel with each judge coming from a different judicial circuit, and then requires that venue be assigned to one of those circuits. Given the nature of this case and the statute’s implicit call for geographic diversity and neutrality, a randomly-selected panel and venue would be a better way to fulfill the statutory mandate. Instead, my colleagues have chosen to keep this case in Dane County and leave the originally assigned Dane County judge on the panel. The court has also hand-selected two additional judges rather than using a neutral process. To be clear, I am not suggesting the judicial panel will fail to do its job with integrity and impartiality. But this approach is an odd choice in the face of a statute so clearly designed to deter litigants from selecting their preferred venue and judge. I also write to respond to the entreaty from the Congressmen, the Legislature, and the amici that we use our superintending authority to seize this case from the circuit court, exercise independent jurisdiction, and dismiss it on the merits. This request is not without force given the unique posture of this case. The petitioners here make the rather extraordinary plea for the circuit court to declare a 2022 decision and order of this court unconstitutional. That said, these issues are not yet ours to decide. Our role at this stage is limited—dealing only with the statutory mandate to appoint a three-judge panel which is then empowered to adjudicate the petitioners’ claims. To be sure, the Congressmen, the Legislature, and the amici raise legal roadblocks that must be reckoned with. But setting the precedent that this court should swoop in and shut down a case before it ever gets to us is not a door we should open. The circuit court panel will consider all the relevant substantive and procedural arguments in due course, and I would give it that opportunity. I therefore concur in the court’s order appointing the panel, but I disagree with the method the court uses to appoint the panel and select venue.  Ziegler Ziegler dissent Today, my colleagues—disregarding the United States Constitution, the Wisconsin Constitution, and fundamental legal principles—approve a collateral attack of our court’s decision by a panel of circuit court judges, unsupported in the law and barred by laches. The majority not only undermines our constitutional authority and circumvents established redistricting precedent but also, again, usurps the legislature’s constitutional power. In allowing this litigation to proceed, the majority abdicates its constitutional superintending authority to Wisconsin’s circuit courts. Compounding the constitutional problems which prohibit a circuit court panel from reconsidering or overturning our decisions, the selection process for this hand-picked panel lacks even a hint of transparency. Behind closed doors, my colleagues chose three circuit court judges to consider apportioning, not redistricting, court-established congressional maps - something this panel is not constitutionally empowered to do. This action is barred by laches and is contrary to the Wisconsin Constitution and the Elections Clause of the United States Constitution. Under our state constitution and the United States Constitution, map-drawing authority lies with the legislature alone. And, our court has repeatedly declined to reconsider its adoption of Governor Evers’ congressional maps in Johnson II. While we were forced to act in the Johnson cases due to the impasse between the legislature and the governor, we are not faced with any such constitutional crisis here. This panel is not apportioning maps that the legislature drew and the governor approved. The so-called “apportionment” is of maps our court selected. The majority does not consider any of these distinctions in its order. Because these are court-created maps, the panel has no constitutional authority to revisit or change them, nor can it redefine apportionment because that too was decided in Johnson I. In Johnson I and Johnson II, the court decided apportionment, partisan gerrymandering, and congressional map districting, and those decisions remain unchanged, as do the court-selected congressional maps. Plaintiffs cite no authority to support a circuit judge panel revisiting our court’s determinations on apportionment. What the panel is to consider in addressing only apportionment is as clear as mud. If our court understands that the constitution forbids such a panel from reconsidering or overturning our court’s decision on apportionment or redistricting, then it is unclear what else the panel can do other than restate Johnson I and II. Otherwise, the court’s order has put the panel in a constitutional dilemma because the panel lacks any authority to revisit our decisions. *** I dissent without considering the merits of the case. In fact, it is impossible to know what the panel will be doing. The order ignores the many concerns that I raise, the questions to be answered by the panel, the factors to be weighed, the arguments that will be set forth, or any standards that might apply. Given Johnson I and its progeny, it is difficult to know what, if anything, this panel can or should do, and our court provides zero guidance. To me, the only constitutionally permissible action we should take is to dismiss this charade. Once again, a majority of this court engages in partisan judicial activism—this time to reshape congressional maps. This is no isolated incident; it is a pattern. As Justice Rebecca Grassl Bradley recently observed: “Political forces continue to use this court to obtain what the democratic process denies them. The Wisconsin Constitution plainly prohibits a circuit court—empaneled by this court or not—from adjudicating a challenge to a final judgment of the supreme court. The majority nevertheless entertains yet another kick at the redistricting cat. “ We have heard the substance of this case before. The plaintiffs have merely returned for a second bite at the apple armed with a fresh legal theory. Even though they have cited no authority in support of their extraordinary legal theory, this court accepts their approach wholesale without demonstrating any legal analysis, critical reasoning, or attempt to reconcile this unprecedented proceeding with constitutional constraints. Not one word from the majority addressing laches. Instead, the court places this three-judge panel in the impossible position of considering “apportionment” without any authority to reconsider or overturn our precedent. *** (Original version:) Worse yet, the plaintiffs’ theory disobeys the United States Constitution’s Elections Clause which vests redistricting responsibility exclusively in “the Legislature thereof.” As the United States Supreme Court recently reaffirmed, the role of state courts in congressional redistricting is “exceedingly limited.” Moore v. Harper, 600 U.S. 1, 34 (2023). This lawsuit invites the very judicial meddling that the Constitution prohibits. We see other states invoking fairly interesting procedures to address congressional maps. We do not see other state supreme courts allowing their lower courts to re-evaluate court-established congressional maps. While it may be more expedient for those in political favor to continue to turn to our court for map drawing, redrawing, and redrawing, or any of a host of “hot” political issues, that is not what the Constitution demands. And, these are federal congressional maps, but the majority does not give any weight to important federal constitutional concerns. The judiciary is to be the least dangerous branch of government. Not today, at least in Wisconsin. (Replacement paragraph:) Worse yet, the plaintiffs’ theory disobeys the United States Constitution’s Elections Clause which vests redistricting responsibility exclusively in “the Legislature thereof.” As the United States Supreme Court recently reaffirmed, the role of state courts in congressional redistricting is exceedingly limited. See Moore v. Harper, 600 U.S. 1, 36 (2023) (“[S]tate courts may not transgress the ordinary bounds of judicial review such that they arrogate to themselves the power vested in state legislatures to regulate federal elections.”). This lawsuit invites the very judicial meddling that the Constitution prohibits. We see other states invoking fairly interesting procedures to address congressional maps. We do not see other state supreme courts allowing their lower courts to re-evaluate court-established congressional maps. While it may be more expedient for those in political favor to continue to turn to our court for map drawing, redrawing, and redrawing, or any of a host of “hot” political issues, that is not what the Constitution demands. And, these are federal congressional maps, but the majority does not give any weight to important federal constitutional concerns. The judiciary is to be the least dangerous branch of government. Not today, at least in Wisconsin. *** (T)he majority appoints circuit court judges to do something, but provides no guidance. This panel cannot constitutionally reconsider the court’s legal conclusions regarding apportionment or the congressional maps. Allowing the abuse of WIS. STAT. § 801.50(4m) in this way runs headlong into constitutional constraints. Before we even begin to consider ordering a panel to apportion under this statute, we must start with the constitution. The majority instead starts with a facial application of the statute, completely ignoring constitutional implications of having a panel act on a matter that has been definitively decided by our court. *** Compounding the constitutional violations is the opaque process by which my colleagues selected the three-judge panel. There has been no disclosure of criteria, no explanation of procedure, and no transparency whatsoever. Not that these judges bear any fault in their selection, but there are over 260 circuit judges in our state, and we have no information on how or why these six judges were picked. The secrecy surrounding the selection process invites doubt. The public will never know what guided these choices; neither do I. *** Today is not a good day for Wisconsin’s judicial system. Our court has undermined its own constitutional authority in furtherance of affording the Democratic Party even more partisan political advantage than it already has with Governor Evers’ congressional maps in place. My colleagues ought not complain when our precedent is not taken seriously or followed. By entertaining this legal fiction, the majority jeopardizes the credibility of the judiciary and invites violation of foundational constitutional principles. Redistricting and reapportionment authority belongs to the legislature—not the judiciary. It occurs after a census. Because of the impasse after the last census, our court was the final word regarding apportionment and selecting the congressional maps. A circuit court panel simply cannot overturn or revise Johnson I and II.  Bradley Bradley dissent
The plaintiffs frame this court’s sole role in the proceedings as fulfilling a ministerial duty imposed by statute. The majority agrees. The members of this court, however, swore an oath to uphold the Wisconsin Constitution, which prohibits lower courts from reconsidering decisions of this supreme court. The Wisconsin Constitution is superior to the Wisconsin Statutes, and is dispositive. The circuit court nevertheless gave notice to this court of the WBLD and Bothfeld Complaints . . . . In response, the majority pretends this is a fresh challenge to an apportionment—rather than a collateral attack on a judgment of this court—and . . . appoints a hand-picked three-judge panel to consider plaintiffs’ challenge to this court’s adoption of Governor Tony Evers’ proposed congressional map in Johnson. None of this comports with the constitution. The Wisconsin Constitution denies the legislature any authority to empower a lower court to review the constitutionality of a final judgment of this court. The legislature itself, as amicus curiae in these matters, rejects the majority’s contrary interpretation, recognizing that the court’s constitutional superintending and appellate authority over all Wisconsin courts precludes the circuit court from adjudicating plaintiffs’ claims. The constitution itself relieves this court of any ostensible obligation to appoint a three-judge panel to perform that which the constitution forbids. Nonetheless, the majority—without even mentioning the constitution—simplistically cites the statute and says it must obey what it perceives to be a legislative command. Impermissibly interpreting statutory law to override the constitution, the majority punts to a panel of lower court judges a decision they are constitutionally unauthorized to make. In an unprecedented ruling, the majority holds that (a state statute) imposes a mandatory duty upon this court to appoint a three-judge circuit court panel for any “action to challenge the apportionment of any congressional or state legislative district” . . . . The majority says: “Because [the Bothfeld and WBLD] complaints constitute ‘actions to challenge the apportionment of a congressional or state legislative district’ within the meaning of § 801.50(4m), this court is required to appoint a three-judge panel and to select a venue for the action . . . .” (cleaned up) (emphasis added). The majority errs—gravely. Setting aside the purely political shenanigans underlying these particular cases, toppling Wisconsin’s judicial hierarchy undermines Wisconsin’s constitutional structure, damages this court’s legitimacy, and deprives the People of Wisconsin of the stability the rule of law provides. In addition to ignoring the constitution, the majority makes no mention whatsoever of the redistricting actions resolved by this court, which Justice Annette Kingsland Ziegler recounts in her dissent. After the 2020 Census revealed malapportionment, the Wisconsin Legislature drew new maps, but Governor Evers vetoed them. This political impasse prompted an original action, which this court granted to remedy the unconstitutional malapportionment produced by population shifts. Thereafter, both the United States Supreme Court and this court denied multiple challenges to the constitutionality of the congressional map. This is no ordinary case in which a party brings an apportionment challenge in the first instance in circuit court; this supposedly supreme court has already spoken, and circuit court judges have no authority to revisit this court’s decision, even if the legislature purportedly gave it. The majority’s interpretation of (pertinent statute statutes) permits a panel of Wisconsin circuit court judges to reopen a final judgment of the supreme court to reconsider the constitutionality of the Johnson II congressional map adopted by this court to remedy malapportionment. The hierarchy of appellate jurisdiction under the Wisconsin Constitution is plain, and the majority’s holding is glaringly unconstitutional. The legislature cannot empower a circuit court to review a final judgment of the Wisconsin Supreme Court, nor can the legislature require this court to appoint a circuit court panel to do so. The majority tacitly approves an impermissible collateral attack—in a lower court—on a decision of this court, but the Wisconsin Constitution prohibits such a maneuver. *** Under the Wisconsin Constitution, this court’s superintending authority is plenary and without limitation or exception. “Under the Wisconsin Constitution, [the administration of the courts is] expressly vested in this court; our authority to supervise and administer the Wisconsin court system is not created or circumscribed by the legislature.” The legislature cannot limit, invade, or strip this court’s constitutional authority. No statute can invade this court’s constitutionally-conferred appellate jurisdiction either. Under (the state constitution) “[t]he supreme court has appellate jurisdiction over all courts . . . .” While plaintiffs concede (the pertinent state statutes) leave this court’s “superintending and administrative authority” under (the constitution) intact, plaintiffs posit it would be extraordinary for the court to exercise it in this case. Hardly. Allowing a panel of circuit court judges to adjudicate a challenge to a supreme court decision impermissibly gives lower court judges appellate jurisdiction over the state’s highest court. That is extraordinary. (The constitution) gives circuit courts “such appellate jurisdiction in the circuit as the legislature may prescribe by law.” The supreme court is, of course, beyond the realm of any circuit. *** This court has accepted procedural statutes like (those in this case), but under the original understanding of the Wisconsin Constitution, this court retains its ultimate authority over court procedure. Assertion of that authority is particularly imperative if a statute appears to elevate a circuit court to a position of appellate review over the supreme court—a constitutional impossibility. Legislative interference with the authority constitutionally conferred on the judiciary has long been recognized to violate the Wisconsin Constitution. . . . “A collateral attack on a supreme court judgment” like these “would ordinarily be dismissed upon arrival.” (Citation to her own dissent in a prior case.) Political forces continue to use this court to obtain what the democratic process denies them. The Wisconsin Constitution plainly prohibits a circuit court—empaneled by this court or not—from adjudicating a challenge to a final judgment of the supreme court. The majority nevertheless entertains yet another kick at the redistricting cat. Unlike Schrödinger’s cat, this one most assuredly has been dead for years. I dissent. By Alexandria Staubach
Legislation in response to the temporary suspension of Milwaukee County Circuit Court Judge Hannah Dugan quietly made its way through public hearing and voting in the Assembly’s Judiciary Committee. Bill AB380/SB381 would require judges who are suspended for misconduct to receive no pay. However, the law would not apply retroactively. So whether or not it passes, it will not apply to Dugan. The bill passed out of committee on Oct. 1 on a party-line vote: four Republicans for and three Democrats against. The Wisconsin Supreme Court in April suspended Dugan, who was charged criminally in federal court for allegedly helping an undocumented immigrant evade federal law enforcement. In doing so, the court invoked its “superintending and administrative authority over all courts in the state.” The Supreme Court did not impose additional sanctions or conditions beyond the temporary prohibition on Dugan from exercising the powers of a circuit court judge. She continues to be paid. At the public hearing on the bill on Sept. 25, Rep. Andrew Hysell (D-Sun Prairie) highlighted that the bill may not address the conduct that its proponents seek to censure. He pointed out that if a judge was subsequently found innocent, there was no mechanism to redress backpay. Hysell is one of the few attorneys in the Legislature, The bill was then amended to permit back pay from the date of suspension if ultimately the Supreme Court imposes no discipline on a judge and to clarify that the temporary suspension must be for criminal misconduct. The bill appears aimed at Dugan's actions rather than any wider issue that the Legislature otherwise would have addressed. In written testimony, bill sponsor Rep. Shae Sortwell (R-Two Rivers) said that “Wisconsin taxpayers must be protected from the misconduct and/or commission of a crime by rogue judges.” At the public hearing and before the committee vote, Sortwell focused on Dugan’s specific case. He characterized her suspension as a “taxpayer-funded vacation” and said he found it “mind-boggling . . . that some people are OK with judges helping criminals escape law enforcement officers.” He said he thought the Supreme Court was “obviously predisposed to be more favorable of the actions of Judge Dugan for their policy positions.” Judicial suspensions are rare. Legislative materials associated with the bill indicate only 15 judges have been suspended since 1978. The Senate’s version of the bill has been referred to its Committee on Judiciary and Public Safety and has not yet been scheduled for public hearing. Jury selection in Dugan's case is set to begin Dec. 11. Former Chief Justice Ziegler is outraged by changes to Supreme Court's internal operating procedures9/9/2025 By Alexandria Staubach
Justice Annette Kingsland Ziegler says the Supreme Court of Wisconsin has abandoned two-year-old internal operating procedures that took power from the chief justice and gave more decision-making authority to an administrative committee controlled by the court's majority. Ziegler discussed the recent procedural changes in her dissent to a July 2025 decision declining to establish a permanent specialty court for complex business litigation. “The public will not know what occurred behind closed doors for this about-face to take place,” said Ziegler about the changes in procedure, which occurred since Ziegler was replaced as chief justice. Wisconsin Watch in 2023 published the heated emails exchanged between justices when the majority formed by Justices Ann Walsh Bradley, Rebecca Dallet, Jill Karofsky, and Janet Protasiewicz changed internal operating procedures shortly after Protasiewicz took her seat on the court. The changes took power away from the chief justice—at that time Ziegler. Ziegler served two two-year terms as chief justice, from 2021-2025. This spring, the same majority that changed the rules in 2023 voted in two new chief justices, first Walsh Bradley, whose term on the court expired at the end of July, and now Karofsky. Ziegler was the only chief justice to deal with the more liberal majority’s internal operating procedures. Ziegler complained in her dissent that "these four justices embrace process when it is convenient and disregard process when it is not." Back in 2023, she said, "(t)he 'court of four,' unlike any majority in history, ensured that it would completely control what had always been understood as the constitutional authority of the chief justice." Ziegler wrote in her dissent that “almost immediately" after her ouster as chief, the court “reverted to the original practices and procedures that had been in place for over four decades.” The “nearly two-year-old changes to our administrative practices and procedures relating to the constitutional role of the chief justice were undone.” Ziegler called the about-face “the exercise of sheer will to undo the constitutional role of the chief justice, when convenient, and reinstate it, when opportune,” calling it a “power grab” and “complete disregard for process.” As for the matter of the business courts, Ziegler criticized the court’s decision to terminate the nearly decade-old pilot project for specialty business courts. She said the decision to end the business court project was a disservice to the memory and work of former Chief Justice Patience Roggensack, who led the court from 2015 to 2019. “The majority does this without any regard to the fact that former Chief Justice Roggensack viewed this initiative as of upmost importance.” Ziegler did not acknowledge in her opinion that conservatives also have a history of changing court procedure when it suits them. Ten years ago, Republicans used a constitutional amendment to replace the 126-year-old practice of the longest-serving justice serving as chief. At the time, Chief Justice Shirley Abrahamson was the longest-serving chief justice in the state’s history, having taken the helm in 1996. Some felt then that conservatives were attacking the liberal Abrahamson. A campaign backed by $600,000 from the state’s largest business group resulted in passage by voters in April 2015 of a constitutional amendment allowing the justices to vote for chief justice. Abrahamson sued over the amendment but lost. Roggensack became chief on May 1, 2015, having been voted in shortly after the amendment passed. When the new majority of justices in August 2023 passed internal operating procedures to take away certain powers of the chief justice, Dallet said in a statement that they “were primarily made to ensure that any one person could not hold up the work of the entire court.” The statement came at the opening of the court’s 2023-2024 term, during which the court issued a record low of 14 opinions. The court’s productivity is up, with 23 cases decided in the 2024-2025 term. However, the numbers still lag behind the average of 50 decision cases in the previous decade, according to a report from University of Wisconsin’s State Democracy Research Initiative.  By Alexandria Staubach
The Wisconsin Supreme Court is back in session, having heard its first oral arguments of the new term on Tuesday. The pair of cases before the court examine privacy under the Fourth Amendment regarding the online world, considering whether materials brought to law enforcement by third-party online platforms require a warrant to be opened. Oral arguments opened for the first time in 30 years without Justice Ann Walsh Bradley. Newly installed Chief Justice Jill Karofsky presided, and Justice Susan Crawford made her debut on the high court bench. The first case involved Snapchat’s sending of a video suspected of containing child sexual abuse material (CSAM) to Wisconsin law enforcement. Snapchat had traced the video to Michael Joseph Gasper’s account. A Waukesha County Sheriff’s Office detective first viewed the material without a warrant. He then obtained a warrant that led to discovery of more CSAM material on Gasper’s phone. Gasper successfully moved to suppress the evidence in Waukesha County Circuit Court. Judge Michael Bohren ruled that Gasper retained a reasonable expectation of privacy in his Snapchat data. Prosecutors successfully appealed Bohren’s ruling. Wisconsin Court of Appeals District 2 concluded that Snapchat’s terms of service notify all users that their accounts are monitored for CSAM material, which, if found, would be turned over to law enforcement. During Tuesday’s oral arguments, Wisconsin Department of Justice attorney Michael Conway argued that an exception to the warrant requirement allowed law enforcement to view the material without a warrant. Conway argued that if the government had a “virtual certainty” that looking at the file would not reveal anything else of significance not conveyed by the private party, its conduct was appropriate and permitted. Conway said the case differs from instances where law enforcement officers search a cell phone or container. The government didn’t search a phone or a file, he said. Instead, “the government searched a photo that was provided to it by a third party.” “Snapchat didn’t invite law enforcement to open a whole account,” he said. “The cases are a little frustrating and not particularly clear,” said Justice Brian Hagedorn about the relevant case law. Crawford asked whether the state was asking the court to “narrowly authorize the government to conduct additional searches without a warrant when there is a cyber tip for child sexual abuse specifically” and questioned why the court would make such a distinction. The second case heard by the court presented similar questions. The case arose when Google presented the Jefferson County Sheriff’s Office with evidence of CSAM held in a Google Photos account owned by Andres Rauch Sharak. Again, a detective with the sheriff’s office viewed the material without a warrant. In addition to making arguments similar to those made earlier by Gasper, Sharak’s attorney, Bradley Novreske, argued that Google’s monitoring for CSAM amounted to government action because Google would not endeavor to look for the material on its own. “This isn’t voluntary for them,” said Novreske. He argued that the federal government functionally compelled the searches, “indirectly deputizing” online platforms that enjoy immunity for content created by individual users and the privilege of policing themselves. Novreske referred to a group of federal laws known as the “Protect the Children Act.” Those laws do not themselves compel searches, but he argued that they effectively compel online platforms to act like the government in looking for CSAM. “How many courts have said what you’re asking us to say?” Justice Annette Ziegler asked. “No courts have been asked to,” replied Novreske. He acknowledged that whether online platforms are “functionally deputized” to search for illicit material is an issue of first impression nationwide. No one law specifically says that online platforms are required to look for CSAM. In fact, one of the laws encompassed by the Protect the Children Act specifically says that such searches are not mandatory. “I don’t understand how we could disregard a provision that explicitly says searches are not mandated and find that some combination of other provisions or regulations does create such a requirement,” said Crawford.  The Wisconsin Supreme Court hearing room. Photograph by Margo Kirchner. By Alexandria Staubach
Wisconsin lawyers will soon be able to claim up to six credits for courses on cultural competency and reduction of bias within the legal system to satisfy the 30 mandated hours of continuing education every two years. A new rule approved by the Wisconsin Supreme Court permitting the training will take effect for the reporting cycle beginning in January 2026. The rule stops short of mandating any course in the subject area, leaving it to the attorney's choice. At an open session following a public hearing in January, the Supreme Court justices voted to approve the State Bar of Wisconsin’s petition seeking recognition of continuing legal education credit for courses addressing cultural competency and reduction of bias. The contours of the rule and when it would take effect remained outstanding until last week when the court issued its final order. The order put to rest a years-long campaign for attorneys to receive such credits. In 2022, the Supreme Court rejected a previous petition for a similar rule change. At that time, Justice Rebecca Grassl Bradley penned a 33-page concurrence, writing that the State Bar was seeking to “mandate DEIA training, impose group think on attorneys, and condition bar admission and continuing licensure on subscribing to an illiberal political ideology.” Bradley attached her lengthy 2022 concurrence to her seven-page dissent in last week’s order approving the new legal education credits. In her dissent, Grassl Bradley cited authorities from Bob Dylan to Frederick Douglass to support her position that cultural competence and bias reduction education “inflicts particularly pernicious damage on the justice system." She wrote that “without any evidence, (DEI’s) adherents assert that race-based bias infects the entire system, precluding people of color from receiving equal protection of the law.” Grassl Bradley asserted this was an “insupportable insult to attorneys and judges” and is “in derogation of every principle that makes America great.” Justice Annette Ziegler joined the dissent. The January decision came with sharp criticism from Justice Brian Hagedorn as well. At the court's January open session he called the rule change “wrong-headed and likely counterproductive.” However, although last week’s order noted Hagedorn's dissent to the outcome, Hagedorn did not join Grassl Bradley’s written dissenting opinion. The rule change was also opposed by conservative advocacy group Wisconsin Institute for Law & Liberty, which, according to its January testimony against the rule, is generally opposed to continuing legal education. Note: We are crunching Supreme Court of Wisconsin decisions down to size. The rule for this is that no justice gets more than 10 paragraphs as written in the actual decision. The “upshot” and “background” sections do not count as part of the 10 paragraphs because of their summary and necessary nature. We’ve also removed citations from the opinion for ease of reading but have linked to important cases cited or information about them. Italics indicate WJI insertions except for case names, which are also italicized. Case: State v. Stetzer  Dallet Majority: Justice Rebecca Dallet (17 pages), joined by Justices Ann Walsh Bradley, Rebecca Grassl Bradley, Brian Hagedorn, and Janet Protasiewicz Concurrence: Justice Annette Ziegler (2 pages) Dissent: Chief Justice Jill Karofsky (15 pages) Upshot When a defendant commits an ongoing, otherwise-criminal act, like operating a motor vehicle with a prohibited alcohol concentration (PAC), the elements of the coercion defense (a complete defense to the charge) must be met for the entire duration of that act. Further, a defendant’s personal history can be relevant to the reasonableness of her belief that committing a crime was the only means of preventing imminent death or great bodily harm. Taking these determinations into account, the imminent danger situation that caused defendant Joan Stetzer to drive with a PAC dissipated, ending the defense and resulting in her conviction. Background Joan Stetzer was physically, emotionally and sexually abused by her husband, Bill Behlmer, for many years. He admitted that he physically and verbally abused her. To get away from the abuse, Stetzer sometimes went to their lake house, about 15 minutes from their primary home, because it had interior chain locks on the doors that prevented even someone with a key from entering. During the early hours one morning, after an argument about Behlmer's sexual affairs, Behlmer became violent, screamed at Stetzer, and pushed her down the stairs. Behlmer threatened to call the police, and taunted Stetzer that the police would arrest her instead of him, which had happened in the past. He accidentally dialed 911 but quickly hung up. Around the same time, Stetzer went outside. When the police called back, Behlmer told them that she was likely driving to the lake house and that she may be intoxicated. When Stetzer reentered the house, he ran at her with a closed fist, telling her to “get the hell out.” Stetzer testified that Behlmer had a look on his face that she had never seen before. He then ran after Stetzer into the garage carrying a large metal pot, “whipped” the pot at her, and continued to chase her outside and around her car. Stetzer managed to get inside her car and lock the doors. Behlmer pounded on the windows of the car and yelled “I’m going to take you out you fucking bitch.” Stetzer testified that she was frightened that he would break the windows of the car. Despite drinking a number of glasses of wine earlier that evening, Stetzer fled in her car, testifying that she did not believe she had another alternative. At first, Stetzer said she was “just trying to escape,” without a particular destination in mind, but she soon decided to drive to the lake house. About halfway there, Stetzer passed Officer Kimberley Kuehl in a police car pulled over on the side of the road. Officer Kuehl had learned of Behlmer’s report that Stetzer was likely driving to the lake house and that she may be intoxicated, and had positioned herself along Stetzer’s expected route. Stetzer acknowledged at trial that she saw the police car. When asked why she did not stop, Stetzer testified, “I thought about it. I thought should I stop, and I thought no, I’m not going to stop, I have called the police on two other occasions when being physically abused. [Behlmer] lied and I got arrested." After observing Stetzer weaving and veering in her lane, Kuehl initiated a traffic stop. Stetzer admitted that she had been drinking. She told Officer Kuehl that her husband had thrown her down the stairs and that she was going to the lake house “to get out of there.” Officer Kuehl testified that Stetzer appeared to be afraid of her husband and that she was crying. During the stop, Stetzer exhibited signs of impairment, and a subsequent blood draw showed that her blood alcohol concentration was over the legal limit of 0.08. She was arrested and charged with operating a motor vehicle with a PAC as second offense. At her bench trial, Stetzer stipulated that her blood alcohol concentration exceeded the legal limit, but she argued that the coercion defense absolved her of the offense. She argued that the defense allowed her to a motor vehicle with a PAC because the physical attack and threats by Behlmer caused her reasonably to believe that driving to the lake house was the only means of preventing imminent death or great bodily harm. Trial evidence included testimony from Stetzer, Behlmer, and an expert on domestic violence, Dr. Darald Hanusa. Hanusa, a psychotherapist and clinical social worker specializing in domestic violence, testified that on the night in question, Stetzer was presented with a “classic dilemma” for a person experiencing domestic violence: “[d]oes she stay with the possibility of being injured or does she take a risk to drive a car to flee to safety?” Dr. Hanusa also explained that fear is a primary factor in the decisions of domestic violence victims and that victims often do not call the police. He further opined that because Stetzer had an “adverse relationship with the police department,” the police would be “the last people she’s going to call for help.” The circuit court concluded that the elements of the coercion defense were initially met when Stetzer initially decided to drive away from her home. However, the state proved beyond a reasonable doubt that by the time she was pulled over, Stetzer had other means of safety available, so the elements of the defense no longer existed. The judge pointed out that once Stetzer left the driveway she had more options than driving to the lake house. The court of appeals affirmed. Guts Stetzer argued that as long as the elements for the coercion defense were met at the beginning of the offense when she began to operate her vehicle, the defense applied. We start with the text of . . . the statutes defining the coercion defense. . . . The pertinent statute identifies when an individual’s conduct occurs under circumstances of coercion, providing, in relevant part, that “[a] threat by a person . . . which causes the actor reasonably to believe that his or her act is the only means of preventing imminent death or great bodily harm to the actor . . . and which causes him or her so to act is a defense to a prosecution for any crime based on that act . . . .” The “circumstances of coercion” referenced in the statute are therefore present only when the three elements . . . are met: (1) there is a threat by another person; (2) the threat causes the defendant reasonably to believe that an otherwise-criminal act is the only means of preventing imminent death or great bodily harm; and (3) the threat causes the defendant to engage in the act. *** Requiring the elements of the coercion defense to be met throughout the duration of an ongoing act is consistent with how we have interpreted the closely related defenses of self-defense and defense of others. Like coercion, these other defenses permit an individual to engage in otherwise-criminal conduct (use of force against another) under certain narrow circumstances without facing liability—namely, when the individual reasonably believes that the force is necessary to prevent unlawful interference with the individual’s person or with a third person. Significantly, we have concluded that these related defenses are available only when a defendant or a third person is actually under threat. Even more to the point, we have held that when the otherwise-criminal act is ongoing, like possessing a firearm as a felon or carrying a concealed weapon, a defendant arguing self-defense must not have continued the act any longer than reasonably necessary. Our interpretation of the coercion defense also finds support in how other jurisdictions have interpreted similar defenses. The Supreme Court of Alaska, for example, held that defendants asserting the necessity defense for continuing offenses, like drunk driving, must show some evidence that they stopped violating the law as soon as the necessity ended. And New Jersey courts have noted that in a drunk-driving prosecution, “the distance a driver traveled might be relevant to the defense of necessity if the driver had escaped the harm and continued to drive.” Other courts have come to the same conclusion outside the specific context of drunk driving. And still others have held that coercion or similar defenses apply only as long as the elements of the defense continue to be met. Stetzer’s interpretation, by contrast, lacks a meaningful limiting principle and would dramatically expand the scope of the defense. Accepting Stetzer’s argument that the elements of the coercion defense need to be met only at the beginning of an ongoing, otherwise-criminal act would mean that an individual who is coerced in the first instance is free to ignore clearly safe alternatives to continued criminal conduct, or may continue engaging in such conduct even long after the threat has dissipated. In other words, the coercion defense could apply even if the act is no longer “occur[ing] under circumstances of coercion,” as required by the relevant statutes. We decline to adopt this expansive interpretation and therefore hold that the elements of the coercion defense must continuously be met throughout the duration of an ongoing, otherwise-criminal act. With respect to the second issue before us, Stetzer argues that the circuit court failed to consider her personal history of domestic violence and interactions with the police when determining whether she reasonably believed that operating a motor vehicle with a PAC was the only means of preventing imminent death or great bodily harm. In response, the State asserts that a defendant’s personal history is always irrelevant to what she reasonably believed. We disagree with the State’s categorical claim that personal-history evidence is always irrelevant to the reasonableness of a defendant’s belief. . . . *** Importantly for our purposes, we have repeatedly held that “[t]he personal characteristics and histories of the parties are relevant to” the reasonableness of the defendant’s belief. Regarding self-defense, for example, we held that the defendant’s testimony that he was the victim of an armed robbery at his sister’s residence could support a finding that he reasonably believed he was under an imminent threat when he heard kicking at the door of that same residence. And regarding defense of others, we similarly held that evidence that the defendant knew the victim abused his sister and could be violent could support a finding that the defendant reasonably believed his actions were necessary to protect his sister. We conclude that evidence of a defendant’s personal history can be similarly relevant in the context of coercion. Like self-defense and defense of others, the coercion defense focuses on what the defendant “reasonably believes” about both the threat and the act necessary to prevent it. Determining whether the defendant “reasonably . . . believe[d] that . . . her act . . . [wa]s the only means of preventing imminent death or great bodily harm,” therefore, must be determined from the standpoint of the defendant, and the operative question is what a person of ordinary intelligence and prudence would have believed in the defendant’s position under the circumstances that existed at that time. And if personal history can be relevant to this analysis for self-defense and defense of others, it must similarly be relevant for the defense of coercion. The State suggests that the personal history of the defendant is irrelevant because considering it would transform “reasonableness” into a subjective standard. We disagree. Whether evidence of a defendant’s personal history is admitted or not, the underlying legal question remains the same: what a person of ordinary intelligence and prudence would have believed in the defendant’s position under the circumstances that existed at that time. In answering that question, the defendant’s past experiences, like her present ones, may be probative of what a reasonable person in the defendant’s position would have believed under the circumstances. The standard remains objective, however, because a mere subjective belief on the defendant’s part is insufficient to support the coercion defense. The factfinder must still determine if the defendant’s belief was objectively reasonable. Accordingly, we hold that, just as in the contexts of self-defense and defense of others, the defendant’s personal history can be relevant to the reasonableness of her belief that her actions were the only means of preventing imminent death of great bodily harm. *** Here, the circuit court’s conclusion that coercion had been disproven centered on two key factual findings: Stetzer knew she passed a police car and Stetzer was in a city she knows well. Those findings are amply supported by the evidence, and indeed are not disputed. Stetzer herself acknowledged that she saw the police car and that she thought about stopping, testifying that she thought “should I stop, and I thought no, I’m not going to stop, I have called the police on two other occasions when being physically abused. [Behlmer] lied and I got arrested.” On the basis of the findings that Stetzer knew she passed a police car and was in a city she knew, a reasonable factfinder could conclude, as the circuit court did, that beyond a reasonable doubt Stetzer knew there were other means of preventing imminent death or great bodily harm, and that the coercion defense was therefore disproven. Stetzer nevertheless argues that the circuit court’s verdict is not supported by sufficient evidence because she did not trust the police and feared they would arrest her, and that it was therefore reasonable for her to believe that continuing to drive past the police car was the only means of preventing imminent death or great bodily harm. But a reasonable factfinder could conclude, her distrust of police and fear of arrest notwithstanding, that Stetzer could not reasonably believe that she would still be under a threat of imminent death or great bodily harm by Behlmer while in the police’s presence. Moreover, a reasonable factfinder could have relied, as the circuit court did, on Stetzer’s knowledge of the area. In particular, the record indicates that on the way to the lake house, Stetzer passed a hotel that she knew was open. A reasonable factfinder considering this record could have reached the same conclusion as the circuit court: that the coercion defense had been disproven.  Ziegler Concurrence I cannot, however, join part of the majority opinion, . . . because the majority unnecessarily reaches out to address whether personal history may be relevant to determining the reasonableness of a defendant’s belief that her act was the only means of preventing imminent death or great bodily harm. The court does not need to address this issue to resolve this case. As the majority opinion itself concludes, there is sufficient evidence to support the circuit court’s guilty verdict even if Stetzer’s personal history is considered. Said otherwise, whether or not Stetzer’s personal history is considered has no bearing on the outcome of this case. “‘Issues that are not dispositive need not be addressed.’” Further, the majority’s analysis regarding the relevance of a defendant’s personal history appears to suggest that the psychological effects prior acts of abuse may have on a defendant may be relevant personal history. We have not received meaningful briefing or argument on that issue from the parties, and courts are divided on whether such evidence is relevant to determining the objective component of the coercion defense. Accordingly, we should not opine, explicitly or implicitly, on that issue in this case.  Karofsky Dissent
“I’m going to take you out, you fucking bitch!” Threats, violence, abuse, manipulation, and coercion were all tactics Bill Behlmer employed to exert power and control over his wife, Dr. Joan Stetzer. In the early hours of May 24, 2017, Behlmer yelled the above threat as Stetzer cowered in her truck, wearing only pajamas. She was trying to escape Behlmer’s rage after he engaged in several acts of domestic abuse, including throwing Stetzer down a flight of stairs. Behlmer also threatened Stetzer by calling 911 and promising, “They [the police] [a]re going to get you just like the last time.” At 2:00 a.m., Stetzer fled in her vehicle without her phone, a change of clothes, a wallet, shoes, or even a plan. Just as Behlmer predicted, she was pulled over by the police a few miles from her house. Stetzer, not Behlmer, was arrested. She was later charged with disorderly conduct as an act of domestic violence; operating a motor vehicle with a prohibited alcohol content; and operating a motor vehicle while intoxicated. *** To secure a conviction, the State had to prove beyond a reasonable doubt that Stetzer did not reasonably believe that continuing to drive was her only means of protection from the threat of imminent death or great bodily harm. When assessing both reasonableness and imminence, the circuit court applied the wrong legal standard and consequently erred in concluding that the State met its burden. The majority’s insistence that the circuit court correctly applied the pertinent statute does not square with a proper interpretation of the statute and a thorough review of the evidence introduced at trial. *** The police stopped Stetzer and she tried multiple times to explain to them how Behlmer had attacked her. The officers disregarded her report. Stetzer described her perspective: “I felt like I was a victim . . . of domestic abuse and violence that night, and I felt like I was being treated as a criminal. I was dismissed. [The officers] didn’t even want to hear about what happened.” One officer insisted “you’re lying about the whole thing, you’re just a liar.” The same officer called her “narcissistic,” and another officer “didn’t seem to care.” In the course of being questioned, Stetzer penned a one-page account of what had transpired. In her words, “I was trying to explain that, [number one], this had happened tonight and, [number two], he had gotten away with it before.” The police ignored Stetzer’s account of Behlmer’s violence and abuse. They conducted only the most perfunctory of investigations into Behlmer’s actions. Behlmer even hired an attorney, in anticipation of legal consequences, and was surprised that the police never questioned him again. Instead the police arrested Stetzer for operating a motor vehicle while intoxicated. She was later charged with disorderly conduct as an act of domestic violence, . . . operating a motor vehicle with a prohibited alcohol content, as a second offense, . . . and operating a motor vehicle while intoxicated, also as a second offense . . . . Karofsky says reasonableness and imminence are central to the case and must be assessed within the context of domestic abuse. *** Personal history is particularly salient when assessing the behavior of domestic abuse victims. Hanusa framed it this way: “The question for victims of domestic violence isn’t how a reasonable person reacts in this situation. The question is given trauma that the victim of domestic violence has received, how would a reasonable domestic violence survivor respond. That’s the important question.” The violence can have widespread effects. “As with victims of terrorism or those held hostage, a battered woman’s perception of her situation and reality in general is changed and substantially altered. When this occurs, her capacity to evaluate options is diminished substantially.” For a reasonable victim of domestic violence, “[i]n situations of stress and trauma, there tends to be a narrowing or focusing on parts of the experience that the brain is appraising as really essential to survival and coping.” A domestic violence victim in survival mode will experience an “ignoring or non-processing of peripheral details.” *** Understanding the distinction between imminent and immediate is especially important when assessing the culpability of a domestic violence victim who engages in unlawful conduct to protect herself from the threat of imminent death or great bodily harm. “Imminent” does not mean that the threat or harm is occurring this moment. Rather, “imminent” means that the threat or harm is impending. “[T]he use of the word ‘immediate’ . . . obliterates the nature of the buildup of terror and fear which had been systematically created over a long period of time. ‘Imminent’ describes the situation more accurately.” Conflating the two standards leads courts to improperly blame domestic violence victims for failing to exercise proper judgment. Said differently, “the relevant question . . . concerns the relationship as a whole,” not just the most recent incident of abuse. *** The police were hardly a means of safety for a reasonable person in Stetzer’s position. Behlmer himself admitted that he had manipulated the police against Stetzer in the past. And that very night he taunted her with the threat that the police would come and “get you just like last time.” Stetzer testified that if she contacted the police, they might return her to Behlmer. Stetzer learned from past experiences that the police do not believe her reports of domestic abuse. Why would the police believe her now? Why would the police keep her safe this time? The circuit court failed to consider whether a reasonable person with Stetzer’s past experiences would believe that contacting the police would have interrupted the imminent threat. Had it done so, it would have identified reasonable doubt. *** Mystifyingly, the circuit court made no mention of the years-long history of abuse that informed Stetzer’s decision-making that night. Nor did it account for Hanusa’s testimony that a domestic violence victim, having endured years of abuse, might behave in a state of fight-or-flight, which readily explains why Stetzer would flee. Stetzer had been a victim of Behlmer’s physical abuse for years, and Behlmer’s abuse that night had ricocheted between verbal (calling her names and threatening her), to psychological (calling 911 to get her arrested), to physical (throwing her down stairs, throwing a heavy pot at her, and pounding on the truck windows). Given the history of abuse and the events that preceded her driving, Stetzer was understandably still terrified of Behlmer once she started driving. And her fear did not diminish upon pulling out of the driveway. She thought the headlights behind her were Behlmer chasing her down as he had done in the past. Stetzer had no reason to believe Behlmer was no longer a threat to her. Stetzer, and any reasonable person in her circumstances, would believe that fleeing from Behlmer was her only means of safety. The presence of a police car did not alleviate the threat Behlmer posed—his aggression continued to be dangerously impending. In other words, a reasonable doubt remained as to whether the State proved that the threat was no longer imminent. To summarize, the majority misses the mark by adopting the circuit court’s incorrect conclusion that the State met its burden. The State’s entire case, and the circuit court’s conclusion, depended on two facts: the presence of an officer and Stetzer’s familiarity with the area. Yet a diligent examination of the record—including those two facts—reveals that the State failed to disprove Stetzer’s coercion defense. The circuit court did not apply the correct legal principles in evaluating the State’s case. Undoubtedly, Behlmer’s history of abuse, and his manipulation of law enforcement, coupled with his threat to use the police to “get” Stetzer, would cause a reasonable person in Stetzer’s circumstances to believe that seeking help from the police could catapult Stetzer back to Behlmer’s violence and abuse. And being in a familiar place would be cold comfort to anyone in Stetzer’s circumstances, given that the place was just as familiar to Behlmer, and he had followed her in the past. It was reasonable for Stetzer to believe that Behlmer’s escalating physical abuse remained dangerously impending. At minimum, a reasonable doubt remained as to whether the State showed that Behlmer was no longer coercing Stetzer. The majority adopts the circuit court’s legal error, effectively eliminating the coercion defense for a victim it was written to protect. |
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